24 Ga. 485 | Ga. | 1858
By the Court. delivering the opinion.
This was an action of trover for the recovery of two promissory notes of one thousand dollars each, which had been given by the plaintiff in error to the defendant’s intestate, in his lifetime, in part payment for several negroes purchased from him. The negroes were alleged to be unsound by the purchaser, who had had a friendly correspondence with the intestate in his lifetime, and who had said that he wished the matter settled, and that he would lose something. The parties were brothers. The plaintiff in error had sold a part of the negroes for twenty-two hundred dollars, to a man named Odum, and he held his note for #1200, a part of the sum. One of the negroes had died. Shortly after the death of the intestate, the. defendant called at his house and proposed to exchange Odum’s note for #1200, for his two notes of §2000. The exchange was made without difficulty on the representation, (according to one witness) of the plaintiff* in error, that his deceased brother had agreed to allow the difference between the notes given and received. There was, at the time, no administration on the estate of the deceased. After the administration, the administrator collected the money on Odum’s note, and according to the evidence of Griffin, the difference between the exchanged notes was about six
The first ground is abandoned by the plaintiff in error.
The trade in regard to the negroes was necessarily involved in the investigation, because the exchange of notes was made on the ground that it was claimed by the plaintiff in error, that the intestate had agreed to allow the difference between the notes exchanged as the amount proper to be allowed for the loss on the negroes. If that fact could bo established to the satisfaction of the .jury, the administrator could not make out his title, notwithstanding the exchange was made prior to an administration on the estate. If such was the agreement between the parties, and the administrator was satisfied of it, he ought to hare made the exchange, if it had not been done prior to the administration, rather than to run his intestate’s estate to the expense of litigating the matter. Upon this ground, and this alone, of all those taken in the motion, we think the Court ought to hare granted a new trial.
As the case goes back, we pass no judgment on the ground that the verdict was contrary to evidence.
Judgment reversed.